Whether the Sixth Circuit's definition of "acquittal" conflicts with the Supreme Court's prior decisions defining "acquittal" under AEDPA, whether relitigation to determine if a death-sentenced inmate is mentally retarded violates the Double Jeopardy Clause, and whether the Sixth Circuit violated the AEDPA when it applied the Double Jeopardy Clause's collateral estoppel argument to prevent relitigation, even if that issue might not have been necessary to the court's decision in that case.
Respondent Michael Bies was convicted of kidnapping, murder and attempted rape of a ten-year-old boy in 1992. Despite expert testimony indicating that he was functionally mentally retarded, a jury recommended and judge delivered a death sentence. On appeal, the recognized that Bies was mentally retarded, but held that the aggravating circumstances of the crime outweighed the mitigating factor of his mental retardation. However, in 2002 the held that execution of mentally retarded individuals violated the proscription against . Bies argues that in light of this, his should be commuted since the Ohio Supreme Court already indicated that he was mentally retarded, and re-litigating the issue would violate the Clause of the . The argues that since the issue of Bies' mental retardation was not necessary for the State's decision prior to , contesting the issue of his mental state is not blocked by , or in violation of the Double Jeopardy clause. This case is important because it will help to determine whether states can have the opportunity to relitigate the issue of whether a convicted capital defendant is mentally retarded before his sentence is commuted in light of Atkins.
Questions as Framed for the Court by the Parties
1. Did the Sixth Circuit violate the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") when, in overruling an Ohio post-conviction court on double jeopardy grounds, it crafted a new definition of "acquittal" that conflicts with this Court's decisions?
2. Do the Double Jeopardy Clause's protections apply to a state post-conviction hearing on the question of a death-sentenced inmate's mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002), that does not expose the inmate to the risk of any additional criminal punishment?
3. Did the Sixth Circuit violate AEDPA when it applied the Double Jeopardy Clause's collateral estoppel component to enjoin an Ohio post-conviction court from deciding the issue of a death-sentenced inmate's mental retardation under Atkins even though the Ohio Supreme Court did not actually and necessarily decide the issue on direct review?
In 1992, Respondent Michael Bies was convicted of the kidnapping, murder, and attempted rape of a ten-year-old boy. Bies admitted to participating in the murder with the aid of an accomplice. At the sentencing phase of the trial, clinical psychologists testified that Bies was a "marginally functioning, mildly retarded man" who possessed an IQ of 69, which placed him within the range of mental retardation. ,The jury nevertheless recommended a death sentence.
Bies fought this decision on direct appeal up to the Supreme Court of Ohio, arguing that his mental retardation was a mitigating factor that should reduce his sentence to one other than death. The Ohio courts determined that Bies was indeed mildly to borderline mentally retarded. However, the Ohio Supreme Court affirmed Bies' conviction and death sentence, determining that there were other aggravating circumstances of the crime that outweighed the mitigating factor of his mental retardation. Bies also filed a petition in Ohio state court to seek post-conviction review of his death sentence, claiming in pertinent part that applying the death sentence to his case would violate the Eighth Amendment's prohibition against cruel and unusual punishment because of an emerging "national consensus" against executing the mentally retarded. Contesting Bies' Eighth Amendment claim, the State ultimately conceded that Bies was mildly mentally retarded. However, the State Supreme Court upheld Bies' death sentence, holding that mentally retarded individuals could be executed.
While Bies was filing a second petition for relief through the state courts, the U.S. Supreme Court held in that the death penalty violated the Eighth Amendment's protection against "cruel and unusual punishment" when applied to mentally retarded criminals. Bies then submitted a third petition alleging that since Atkins held that capital punishment for mentally retarded individuals violated the Eighth Amendment, the state was foreclosed from executing Bies since the State had already conceded that he was mentally retarded in prior cases. Despite its prior concession, however, the State opposed Bies' Atkins claim on the grounds that Bies was not mentally retarded. Bies filed a motion for Summary Judgment on the grounds that the Double Jeopardy Clause of the Fifth Amendment barred the prosecution from relitigating the previous mental health findings of the Ohio courts. The state court denied Bies' claim in 2004 without specifically addressing the double jeopardy claim.
The case actually on appeal to the U.S. Supreme Court first originated as a federal habeas petition in August 2000. Bies subsequently amended his habeas petition to include this double jeopardy claim, and the district court granted Bies a writ of habeas corpus on that basis.
The Sixth Circuit Court of Appeals affirmed the writ, holding that in light of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the State's determinations were made in view of an unreasonable application of clearly established federal law, as determined by the Supreme Court. The Sixth Circuit held that since the state's prior factual determinations were used to stipulate whether Bies was entitled to a life sentence, the Double Jeopardy Clause forbade relitigation of those same factual issues. Further, since Bies had been deemed to be mentally retarded, the Sixth Circuit determined that application of the death sentence would constitute "cruel and unusual punishment" in violation of the Eighth Amendment under Atkins.
The Sixth Circuit Court of Appeals rejected the State's request for an en banc panel rehearing. The State appealed to the U.S. Supreme Court and a writ of certiorari was granted on November 3, 2008.
Collateral estoppel under the Double Jeopardy Clause and the definition of "acquittal"
One of the main points of contention between the parties in this case is how the Supreme Court should define "acquittal." The parties disagree on whether Respondent Michael Bies received an acquittal giving rise to collateral estoppel protection under the Double Jeopardy Clause of the Fifth Amendment, which prohibits the government from prosecuting or punishing a person twice for the same crime.
Petitioner David Bobby, Warden for the State of Ohio ("the State") argues that the Sixth Circuit Court of Appeals erred in granting Bies habeas corpus and finding that Bies had been "acquitted" when the Ohio Supreme Court considered Bies' mental retardation as a mitigating factor in his case. To the contrary, the State maintains that the Ohio Supreme Court's statement did not constitute an acquittal. The State argues that Bies was never acquitted because despite the court's recognition of Bies' mental retardation, the jury as well as the Ohio Supreme Court found beyond a reasonable doubt that Bies still deserved the death penalty. As a result, the State argues, Bies does not qualify for protection under the Double Jeopardy Clause because a post-conviction hearing would not subject him to prosecution for a crime for which he was already acquitted. Indeed, the State points out that it was Bies and not the State who initiated the post-conviction hearing process, which is a civil proceeding instead of a criminal one-resulting in a situation that does not resemble one that the Double Jeopardy Clause protects against (for example,. an oppressive prosecutory government). Furthermore, the State argues, the result of the post-conviction hearing could only help Bies by potentially reducing his sentence; if the hearing occurs, Bies will either receive a less severe sentence or simply keep the same sentence he already has.
On the other hand, Bies argues that the formalistic description of "acquittal" that the State proposes is not required for the Double Jeopardy Clause to protect him from a further hearing on the issue of his mental retardation. Bies cites the Supreme Court's decision in Ashe v. Swenson as the authority that governs this case. In Ashe v. Swenson, the Supreme Court defined the concept of collateral estoppel as meaning that once a court has determined an issue of fact by "a valid and final judgment," the issue "cannot again be litigated between the same parties in any future lawsuit." Bies claims that his case falls within this definition of collateral estoppel because the Ohio Supreme Court's finding that Bies was mentally retarded was "a valid and final judgment." Bies acknowledges that a factual "valid and final judgment" is usually made as part of a jury or trial court's judgment of acquittal, but asserts that this procedure is not necessary to trigger collateral estoppel. As a result, Bies argues that he qualifies for collateral estoppel protection even though he did not receive a formal "acquittal."
Was the issue of Bies' mental retardation argued and decided according to the requirements outlined in Atkins v. Virginia, even though Atkins was decided after the finding in Bies' case?
The parties also disagree over whether the requirements outlined in Atkins v. Virginia were already met in Bies' case, or whether the post-conviction hearing would be the first possible time to reach the Atkins standard. In Atkins, the Supreme Court held that application of the death sentence to mentally retarded individuals violated the Eighth Amendment's protection against cruel and unusual punishment. The issue over Atkins arises in this case because the Ohio Supreme Court's finding of Bies as mentally retarded occurred in 1996, before the Atkins decision was issued and imposed constitutional requirements in cases like that of Bies.
The State argues that the Atkins standard was not met at the review that the Ohio Supreme Court conducted, so collateral estoppel cannot prevent a post-conviction hearing on the issue of Bies' mental retardation. The State notes that collateral estoppel only bars relitigation of an issue that was already decided; according to the State, the issue of Bies' mental retardation for mitigation purposes is a completely different issue than that of his mental retardation under Atkins. One of the reasons the State cites for this difference is that Atkins changed the law regarding mental retardation determinations in death penalty cases. The State claims that because the parties could not foresee the Atkins change in the law, the State "had little incentive to litigate the issue of [Bies'] mental retardation" and thus did not have a full and fair opportunity to litigate the Atkins issue.
According to Bies, however, the fact that Atkins was decided after the Ohio Supreme Court determined that he was mentally retarded does not make the Ohio court's finding obsolete. Bies argues that the State's assertion that it did not have a full and fair opportunity to litigate the issue of his mental retardation prior to Atkins is "legally irrelevant." Bies cites previous Supreme Court cases to support his proposition that when a court considers whether collateral estoppel applies to an issue in a case, it focuses on whether an issue was decided. If so, Bies argues, then collateral estoppel applies, regardless of the type or amount of evidence that was presented or the means by which the determination was made. Bies further argues that the State did in fact have an incentive to fully litigate the issue of Bies' mental retardation. This incentive, Bies claims, came from the wide recognition, even prior to Atkins, that mental retardation could be a very persuasive type of mitigating evidence-so persuasive, in fact, that in some cases, courts declined to impose the death penalty on defendants because they found it to be a disproportionate punishment in light of the defendants' mental retardation.
Did the Sixth Circuit violate AEDPA?
Lastly, the State claims that the Sixth Circuit's granting of habeas corpus to Bies violated the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA, at 28 U.S.C. § 2254(d), provides that:
"[a]n application for a writ of habeas corpus . . . shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law . . . ; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
According to the State, the Ohio state post-conviction court's decision allowing the death penalty for a mentally retarded defendant was not "contrary to" or "an unreasonable application of" federal law, but instead was a reasonable decision within the bounds of federal law existing at the time of the decision. As such, the State claims, the Sixth Circuit violated AEDPA when it overturned the Ohio court's decision. The State argues that the Sixth Circuit should have instead granted deference to the Ohio court's post-conviction review.
Bies, however, rejects the State's AEDPA argument as being a mere cover with which the State gained access to Supreme Court review. Bies points out that while two of the three Questions Presented in the State's appeal to the Supreme Court expressly mention AEDPA, "as demonstrated by the lack of attention to AEDPA in [the State's] brief," this case does not concern AEDPA "at all." Instead, Bies argues, the State is in fact requesting the Supreme Court to strike down the Sixth Circuit's application of established Double Jeopardy principles to the unusual facts of this case.
Bies further argues that the State effectively conceded that the clinical definition of mental retardation as applied in Bies' case comported with the definition later outlined by the Ohio Supreme Court under Atkins. According to Bies, the State does not give any support for why the Ohio court's decision, which allowed the death penalty despite this clinically acceptable finding of mental retardation, was not unreasonable.
The State, on the other hand, claims that the Ohio post-conviction court's decision was indeed reasonable, as confirmed by decisions from other state courts. The State argues that every Ohio appellate court that has considered the issue of whether pre-Atkins mitigation findings satisfy the requirements of post-Atkins mental-retardation cases has decided that a mitigation hearing, by definition, does not satisfy Atkins. Additionally, the State argues that the Sixth Circuit owed deference to the Ohio post-conviction court because of the doctrine of comity, which requires that when a state prisoner brings a federal habeas claim, state courts should have the first chance to review the claim.
The Court's decision in this case may help define the parameters by which states can relitigate the issue of a convicted individual's mental retardation. Respondent Michael Bies argues in his writ of habeas corpus that the State of Ohio should be precluded from relitigating the issue of whether he is mentally retarded, since the Ohio Supreme Court stipulated that he was mentally retarded in 1996, and a subsequent decision of the U.S. Supreme Court in Atkins v. Virginia determined that execution of mentally retarded individuals is unconstitutional. On the other hand, Petitioner David Bobby, Warden for the State of Ohio ("the State") argues that since the issue of mental retardation was not essential to the judgment of the Ohio Supreme Court, the issue of whether or not Bies is mentally retarded ought to be relitigated under Atkins standards. The outcome of this case will affect whether or not states can relitigate the issue of mental retardation for individuals sentenced to the death penalty before courts consider commuting their sentences. Because of the idiosyncratic fact pattern in this case, however, the Court's ruling may be narrowly defined.
In Atkins, the Court took the highly unusual step of announcing a new, retroactive rule that rendered a class of individuals categorically ineligible for the death penalty. Looking at the case from a big picture perspective, Bies argues that implicit in the retroactive rule of Atkins is an understanding that the states' interests in finality and settled expectations are outweighed by the cruelty of punishment of the mentally retarded. Bies argues that a finding in favor of the State in this case would give states the opportunity to relitigate the issue of whether a defendant is mentally retarded in light of the fact that they are now deemed ineligible for the death penalty under Atkins. . Meanwhile, a decision in favor of Bies would enable defendants who have been previously recognized as mentally retarded to fall automatically into the class of individuals protected by Atkins. Bies argues that a decision in favor of the State would blur the factual finding that a defendant is mentally retarded with considerations of what the consequences of such a finding might be.
According to Bies, the functional result of a decision in favor of the State here would be to require a defendant to have been formally acquitted by a judge or jury in order to prevent the issue of the defendant's mental retardation from being relitigated. Bies argues that such a decision would alter an "established rule of Federal law" that holds that issues previously determined by a "valid and final judgment"-whether by acquittal or otherwise-are subject to collateral estoppel and cannot be relitigated.
Conversely, the State argues that applying collateral estoppel in this case would undermine the principles of judicial economy that motivated the doctrine of collateral estoppel in the first place. The State argues that before Atkins, evidence of a capital defendant's mental retardation in Ohio did not receive significant weight as a factor in mitigation. Atkins consequently caused a dramatic change in the law that could not have been foreseen. The State argues that a decision in favor of Bies would apply an estoppel rule to an issue that was decided when the results were unforeseeable. By creating such a precedent, the State contends, the Court would send a message that litigants in all types of cases should file "cautionary appeals" to avoid potential preclusive effects that could arise from future Supreme Court jurisprudence.
The State also believes that a decision for Bies in this case would serve to undermine comity principles and the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which requires deference to the decisions of state post-conviction courts. Here, when Bies raised his federal habeas claim, the state courts were "essentially enjoined" by the federal courts from proceeding with an Atkins hearing. The State argues that the Supreme Court clearly left the implementation of Atkins to the states, and that state courts are the proper forum to determine Atkins claims since they are clearly better versed in the state law that made the original determination of mental retardation. The State argues that allowing the federal courts to hijack these determinations from their proper forum in state courts unduly interferes with the legitimate activities of the state and fails to afford the "proper respect for state functions" that comity and federalism require.
Either way, the outcome of this case will help to determine how easily an individual with a potential death sentence may fall into the class of protected individuals who are mentally retarded. In addition, the Court's decision could set the parameters for how much authority state courts can exert in determining whether the previous findings of mental retardation are sufficient for Atkins purposes.
Michael Bies was sentenced to the death penalty by the Ohio Supreme Court in 1996, despite a finding by that court that Bies was mentally retarded. Bies now wishes to bar the State from relitigating the issue of his mental retardation under the Double Jeopardy Clause of the Fifth Amendment. Bies also wants his sentence to be commuted because of a 2002 Supreme Court decision that declared the execution of mentally retarded individuals to be unconstitutional. The State argues that if Bies has any hope of receiving a more favorable sentence that his mental retardation must be relitigated under the standards of the Supreme Court's 2002 decision. The outcome of this case will affect whether or not States can relitigate the issue of mental retardation for individuals sentenced to the death penalty before courts consider commuting their sentences. The Supreme Court's decision, however, could be narrow in its practical application because of the unusual facts presented by Bies' case.
Special thanks to Professor John H. Blume, Professor of Law at Cornell Law School and Director of the Cornell Death Penalty Project. He is serving as Counsel of Record for Respondent Michael Bies and lent insight on the most important issues that may shape the Supreme Court's decision in this case.